If governors don’t reopen houses of worship right now I’ll override them

President Trump: “Today, I am identifying houses of worship – churches, synagogue and mosques – as essential places that provide essential services…I call upon governors to allow our churches and places of worship to open right now.”

Whether this is a deliberate legal/political ploy crafted by him and his team or just one of those days where he asserts a power he doesn’t actually have, I don’t know. He can’t override governors on reopenings. But he can certainly put political pressure on them to reopen on his timetable rather than theirs. Today’s statement reminds me of the “LIBERATE MINNESOTA!” and “LIBERATE MICHIGAN!” tweets from last month. It’s more agitation than actual policy.

…Unless he thinks that the Defense Production Act allows him to designate churches as critical infrastructure, as he did with meatpacking plants not long ago in a bid to force them to stay open too. Is that the argument here? A Reuters reporter tried to get Kayleigh McEnany to be specific about which federal law empowers Trump to override governors. She didn’t know because there isn’t one, but she did offer a wisecrack about reporters hating religion instead.

“Kayleigh, I object to that. I go to church. I’m dying to go back to church” — @jeffmason1 takes umbrage after McEnany suggests that reporters don’t want churches to reopen because they have something against religion pic.twitter.com/uEJQDgcApN

Trump’s not really claiming the authority to force reopenings (even if he is, his lawyers certainly aren’t), he just wants to call attention to bias against religion in lockdown orders as a way to build opposition to lockdowns more broadly. Build a little righteous anger among the public towards governors on this narrow issue and maybe it’ll encourage anger towards the continuing oppression of stay-at-home orders more generally. Trump’s obviously not a religious man but he’s understandably worried that a sluggish economy this fall may cost him reelection. By mobilizing Republicans against the burden on churches he’s hoping to mobilize them against the burden on business too. And really, he’s just following the lead of others. Pastors in California were already planning to reopen in defiance of lockdown rules this weekend before he made this statement today.

The good news for churches is that they don’t need Trump’s help to force reopenings of houses of worship. They can just sue. David French is a legal expert on religious liberty and thinks some churches may have a case here:

Duration: Indefinite or excessively-extended lockdown orders are constitutionally problematic. Reasonable time limits on decision-makers are imperative. An excessively-extended or indefinite lockdown can be struck down on those grounds alone. /2

Unlawful discrimination can take many forms — including, for example, definitions of “essential” that are so broad that they include commercial businesses that are not obviously connected to life-sustaining activities but exclude houses of worship. /4

In RFRA states, governors can't forget they must use the “least restrictive means” if they enact regulations that burden free exercise — and they cannot continue to presume that flat bans on gatherings (regardless of distancing) will meet that test. /6

Jazz noted a double standard in Minnesota between churches and restaurants just yesterday. If a governor wants to limit capacity in churches more so than in retail businesses and believes there’s no less restrictive means he can use to control the epidemic than by sticking with his current rules, drag him into court and make him explain.

Having said that, let’s note that there have been some very bad outcomes this year tied to churches:

Trump is calling houses of worship “essential” and urging governors to reopen them immediately.

Maybe that’s a coincidence or maybe it’s a function of congregants being more likely to flout social distancing rules for whatever cultural reason. Relatedly, the CDC has already issued guidelines on how to safely reopen for schools, camps, retail businesses, etc, but there’s a delay on advice to religious institutions. Why? The Times reported a week ago:

White House and other administration officials rejected the recommendations over concerns that they were overly prescriptive, infringed on religious rights and risked further damaging an economy that Mr. Trump was banking on to recover quickly. One senior official at the Department of Health and Human Services with deep ties to religious conservatives objected to any controls on church services.

“Governments have a duty to instruct the public on how to stay safe during this crisis and can absolutely do so without dictating to people how they should worship God,” said Roger Severino, the director of the Department of Health and Human Services’ Office for Civil Rights, who once oversaw the DeVos Center for Religion and Civil Society at the Heritage Foundation.

So there won’t be any guidelines for religious institutions? No, there will — according to a senior administration official who spoke to NBC, they’ll be out sometime within the next seven to 10 days. But why are they being published at all if the White House is worried about infringing on religious rights? And how exactly would official recommendations on practicing basic pandemic hygiene in church amount to an infringement of anyone’s rights?

And why is Trump demanding that governors let churches reopen right now if his own government won’t have guidance on how they can reopen safely for another week?

The CDC’s interim guidelines on hygiene and social distancing for houses of worship leaked a few weeks ago. You can read them here, starting on page 7:

By the way, Trump said yesterday that we’re not doing another series of lockdowns if a second wave strikes the country this fall. To which I’d say: (1) Once again, that’s not his call to make; (2) he’s right in the sense that both governors and citizens will be very reluctant to embark upon Lockdown 2.0; (3) if there’s a second wave people will start staying home voluntarily en masse to protect themselves, forcing another gruesome economic downturn and imperiling his reelection chances. Which is all he really cares about, of course. If he wants to make sure that the recovery is still in progress when polls open in November he should do everything he can to prevent and contain new outbreaks. Railing against lockdowns won’t be nearly enough.

Update:Aha. So this *was* a deliberate strategy by the president and his team.

A sudden shift in support for Donald Trump among religious conservatives is triggering alarm bells inside his reelection campaign, where top aides have long banked on expanding the president’s evangelical base as a key part of their strategy for victory this November…

The polls paint a bleak picture for Trump, who has counted on broadening his religious support by at least a few percentage points to compensate for weakened appeal with women and suburban populations. One GOP official said the dip in the president’s evangelical support also appeared in internal party polling, but disputed the notion that it had caused panic. Another person close to the campaign described an April survey by the Public Religion Research Institute, which showed a double-digit decline in Trump’s favorability among white evangelicals (-11), white Catholics (-12) and white mainline protestants (-18) from the previous month, as “pretty concerning.”

He’s not going to force governors to reopen churches because he can’t, but it can only help him with evangelicals if he sounds like he wants to.